Negotiating Contractual Indemnity in M&A Deals: Transactional and Litigation Considerations

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Negotiating Contractual Indemnity in M&A Deals: Transactional and Litigation Considerations Structuring Terms to Minimize Financial Risks, Measuring Damages in the Event of Breach THURSDAY, MAY 1, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Lisa S. Lathrop, Partner, Jones Day, Chicago Adam R. Schaeffer, Partner, Jones Day, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Negotiating Contractual Indemnity in M&A Deals May 1, 2014 Lisa Lathrop and Adam Schaeffer, Jones Day

6 Goals Talk about recent experience and trends in negotiating indemnification provisions in M&A deals. Highlight most negotiated and trendy indemnification issues and provisions. Assuming basic understanding of indemnification provisions (i.e., what they generally do / how they work). Happy to answer questions, basic or complicated, at the end or offline. 6

7 I. Indemnification Generally 7

8 Indemnity Generally A contractual remedy for specified items (e.g., breaches of contract; specified liabilities) Absence of an indemnification provision doesn t mean that a contracting party doesn t have a remedy; rather you would have a breach of contract claim Indemnification provisions not only help the injured party recover, they limit the indemnifying party s obligations 8

9 Key Components Indemnified / indemnifying parties Subject of indemnification Limitations on indemnity Survival Caps, baskets, etc. Other carveouts and limitations Procedures for making indemnity claims (thirdparty; direct) 9

10 Source of Indemnification Seller(s) / Buyer Escrows Holdbacks Setoff Is recovery limited to a particular source? 10

11 Indemnification in Multi-Seller Transactions Joint vs. several liability Joint: The Sellers will, on a joint and several basis, indemnify the Buyer Parties from and against any Losses arising from any breach of any representation of the Company... Several: Each Seller will, on a several and not joint basis, indemnify the Buyer Parties from and against any Losses arising from any breach of such Seller s representations... Pro rata share of each claim Each Seller will indemnify the Buyer Parties up to its Pro Rata Share from any Losses arising from any breach of any representation of the Company... Individual caps Consider applicability among various indemnity provisions Indemnification through ancillary agreements 11

12 Items Typically Subject to Indemnification Breaches of reps/warranties Breaches of covenants Excluded liabilities Pre-closing liabilities (asset deal or quasiasset deal) Pre-closing taxes Specified matters Environmental items Litigation items Items disclosed during diligence 12

13 Definition of Losses Key seller concepts: Opportunity to embed exclusions of consequential and punitive damages Opportunity to resist diminution of value claims or losses based on a multiple Opportunity to embed de minimis concept Key buyer concepts: Resist seller s request for exclusions Try to cover costs of bringing indemnification claims Example: Loss means to the extent actually paid or incurred: all losses, liabilities, damages (including excluding consequential, incidental and indirect damages and lost profits), judgments, interest, Taxes, deficiencies, demands, payments, fines, costs, penalties, amounts paid in settlement, assessments or awards and reasonable out-of-pocket costs and expenses incurred in connection therewith (including costs and expenses of suits and Legal Proceedings) and investigation and defense thereof, and reasonable costs and expenses of enforcing a Party s rights hereunder. 13

14 Exclusive Remedy Provisions Keystone of indemnification provisions meant to give parties (especially seller) certainty as to what its obligations are under agreement Commonly exceptions to exclusive remedy provisions Beware of broad definitions of fraud under state law Carve out entitlement to injunctive relief / specific performance provisions and price adjustment mechanisms from the exclusive remedy provision Be mindful of stand-alone tax indemnifications buried in the Tax section 14

15 II. Limitations on Indemnification 15

16 Limitations Generally Monetary: caps / baskets / mini-baskets Time periods Types of losses Net losses Subjective limitations and gotchas 16

17 Monetary Limitations Caps Breaches of reps vs. covenants; other indemnification obligations Baskets / deductibles Basket: Seller is not required to indemnify... until the aggregate amount of all Losses exceeds $[ ] (the Threshold ), in which event Seller is responsible for the aggregate amount of all Losses, regardless of the Threshold. Deductible: Seller s obligation to indemnify... only to the extent... Losses exceed $[ ]. In the market, deductibles are about twice as prevalent as tipping baskets 17

18 Monetary Limitations Common Basket carveouts Fundamental representations Taxes Benefits Environmental Title to assets Most frequently, indemnification claims other than those arising from breaches of representations are not subject to basket 18

19 Monetary Limitations Mini-baskets / de minimis thresholds Functions in place of an overall materiality threshold No Indemnified Party will be entitled to recover for Losses with respect to any individual claim [for a breach of any representation or warranty] unless and to the extent the Losses associated with such claim [or series of related claims] exceed $[ ], and any such claim [or series of related claims] will only count toward calculation of the Basket to the extent [if] exceeding such amount. Consider pairing the materiality scrape with the mini-basket for purposes of determining the amount of any Losses or the occurrence of any breach of a representation... all materiality, Material Adverse Effect and similar qualifiers shall be disregarded 19

20 Time Periods to Bring Claims Time limitations on claims for breaches of reps and warranties vs. covenants Carveouts Statute of limitations considerations Delaware: Marathon; proposed amendments I/M X Information Management Solutions Must provide that claim survives if notice is given Sample: to the extent any claim for indemnification... is made on or before the date on which such representation expires, such representation will survive until the resolution of such claim. 20

21 Limiting Types of Recoverable Damages The trend has been to adopt boilerplate consequential damages waivers: Notwithstanding anything to the contrary herein, no party shall be liable for special, punitive, exemplary, incidental, consequential or indirect damages, lost profits or lost benefits, loss of enterprise value, diminution in value of any business, damage to reputation, loss to goodwill or any damages calculated based on a multiple, whether based on contract, tort, strict liability, other law or otherwise and whether or not arising from any other party s sole, joint or concurrent negligence, strict liability or other fault. Recent market studies show that consequential damages were expressly excluded in 54% of transactions; incidentals excluded in 17%; punitives in 75%* *Source: ABA s 2013 Private Target Mergers & Acquisitions Deal Points Study. 21

22 Exclusions of Consequential and Other Damages What do these terms mean? Punitive and Exemplary damages are essentially the same thing a measure to penalize an actor Incidental damages a term from the UCC that means damages incurred in correcting breach (i.e., a specialty tool to fix a damaged product) Direct and General damages damages that naturally and necessarily flow from a breach Consequential damages inconsistent meanings, but interpreted to mean damages that ensue because of special circumstances of the buyer (and are not the natural result of the breach) Special damages essentially synonymous with consequential damages Lost profits, diminution in value, losses based on a multiple these are all valid measurements of lost value in the right circumstance 22

23 What are Consequential Damages? Law school: Hadley v. Baxendale Direct damages v. consequential damages Consequential: losses arising from the non-breaching party s special circumstances Generally recoverable if reasonably foreseeable or contemplated by the parties at the time the contract was entered into as a probable result of the breach Compare to remote or speculative damages, which are damages that were not contemplated by the parties and are not recoverable under general contract law Negotiating tactics 23

24 Actual Damages - Benefit of the Bargain Damages Measured by determining the difference between the value of the company as warranted and its true value at the time of the transaction. Merrill Lynch & Co. Inc. v. Allegheny Energy Inc., 500 F.3d 171 (2d Cir. 2007) Did buyer receive value represented by the seller? 24

25 Damages Using Multiple of Earnings as a Measure If contract is silent, cases vary on how to value a company for purposes of calculating damages While some courts have referenced the use of a multiple, others are silent on the issue Facts and circumstances analysis party may prove damages using that calculation Factors: Does the contract preclude use of a multiple-based approach? Is the multiple supported by the industry? Is the methodology consistent with Buyer s own valuation models? Are elements of valuation (e.g., EBITDA) part of the represented and warranted financials? 25

26 Net Losses Using this term to mean limitations on recoveries where third party claims, insurance claims and tax benefits may be available to offset a loss Third party and insurance claims The right to indemnification for a particular claim will be reduced by the amount [payable by / actually recovered from] a third party (including an insurance company) with respect to such claim, less any costs or expenses incurred by in connection with its collection of such amount (including any increased premiums) Is the indemnified party required to pursue? Tax benefits Difficult to measure May extend several years 26

27 Subjective Limitations and Gotchas Limitations on indemnification that are not necessarily cut and dry Duty to mitigate Required under most state laws Always provides the indemnifying party with a subjective argument that the indemnified party didn t do everything possible to stem a loss Exacerbation provisions Specific notice periods Exclude delays that do not result in material prejudice to the indemnifying party 27

28 Anti-Sandbagging Provisions A provision limiting a party s right to recover based on facts known by that party prior to signing or closing Anti-sandbagging: if Buyer knows of facts that would cause one or more of the Seller s representations... not to be true..., Buyer will have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof. Pro-sandbagging: The right to indemnification... will not be affected by... any knowledge of the indemnified party Can be included as a representation, covenant, in the indemnity provisions or even in the miscellaneous section Anti-sandbagging: 10% of transactions; pro-sandbagging: 41%; silent: 49%* Know the default rule in your jurisdiction *Source: ABA s 2013 Private Target Mergers & Acquisitions Deal Points Study. 28

29 Indemnification Claim Procedures Requirements to give notice Control of third-party litigation Litigation conditions Competent defense Conflicts of interest Coverage of cost of indemnified party s counsel No settlement without consent of indemnified party Indemnifying part covers all amounts payable Unconditional release of liability 29

30 Environmental Indemnification No-dig Cleanup standards Control of remediation 30

31 Biographies Lisa S. Lathrop Partner, Private Equity Telephone: Facsimile: Adam R. Schaeffer Partner, Mergers & Acquisitions Telephone: Facsimile: Lisa Lathrop has acted as the principal lawyer in a wide variety of transactions involving privately held companies, with a focus on representing private equity funds and their portfolio companies. In doing so, she has experience working with a variety of deal structures in a wide range of industries. Lisa has extensive experience in leveraged buyout transactions, corporate restructurings, equity financings, mergers and acquisitions, and general corporate counseling. She leads the Private Equity Practice in the Chicago Office. Clients Lisa has represented include Baird Capital, Brockway Moran & Partners, High Road Capital Partners, Industrial Growth Partners, Kirtland Capital Partners, Primus Capital Partners, and The Riverside Company. Adam Schaeffer concentrates his practice in the areas of mergers and acquisitions, leasing transactions, and general corporate matters. He represents buyers, sellers, and management teams in public and private acquisitions and divestitures, restructurings, joint ventures, and other strategic alliances, including those in distressed and nondistressed settings. He regularly advises clients regarding general corporate matters, including corporate governance, fiduciary issues, and strategic planning, and in connection with the negotiation of commercial contracts. Adam has represented clients in a wide range of industries, including manufacturing, mining, aerospace, agriculture, health care, pharmaceuticals, logistics, and software. Adam is a frequent speaker on M&A and transactional topics. 31